Opposition Brief — Juan Carlos Salazar, Petitioner v. Juan Rene Molina

Supreme Court briefMar 16, 2023

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No. 22-564

In the

Supreme Court of the United States

JUAN CARLOS SALAZAR,

Petitioner,

JUAN RENE MOLINA,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

J. ERIC MAGEE

Counsel of Record

ALLISON, BASS & MAGEE, L.L.P.

1301 Nueces Street, Suite 201

Austin, Texas 78701

(512) 482-0701 telephone

(512) 480-0902 facsimile

e.magee@allison-bass.com

Counsel for Respondent

QUESTIONS PRESENTED

The court of appeals held that a deputy sheriff –

who made the split-second decision to deploy his taser

on a suspect that committed a felony by attempting to

evade arrest by flight in a highly dangerous manner

and ultimately exited his vehicle at night in the open

– was entitled to qualified immunity. Specifically, the

court of appeals held that it was reasonable for the

deputy sheriff to fear that the suspect still sought to

escape and that the suspect was a threat to his or

others’ safety. Finally, the court of appeals determined

that there is no Fifth Circuit or Supreme Court

excessive-force precedent clearly establishing law that

every reasonable officer would know immediately –

based on a similar level of force in similarly

threatening circumstances, within a blink of an eye, in

the middle of a high-speed chase – to overcome the

deputy sheriff’s entitlement to qualified immunity.

The Petition presents the following questions:

Question 1: Whether the Court should grant

the Petition and review Petitioner’s assertion

that the court of appeals erred in granting

qualified immunity.

Question 2: Whether the Court should review

Petitioner’s arguments that a circuit split exists

and limit the review to only a suspect’s

attempted surrender, therefore eroding the

Graham factors evaluation of the totality of the

circumstances that may indicate that the

suspect is still a threat.

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

TABLE OF CONTENTS ............................................. ii

TABLE OF AUTHORITIES .......................................iii

STATEMENT OF THE CASE .................................... 1

FACTUAL BACKGROUND...................................... 1

II.

PROCEDURAL HISTORY. ....................................... 4

ARGUMENT ................................................................ 7

THE FIFTH CIRCUIT COURT OF APPEAL

REACHED THE CORRECT CONCLUSION................ 7

The Decision Below Comports with

this Court’s Precedents. ......................... 8

Petitioner Fails to Demonstrate that

there is a Circuit Split. ........................ 13

CONCLUSION .......................................................... 18

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Alicea v. Thomas,

815 F.3d 283 (2016) .......................................... 16, 17

Betts v. Brennan,

22 F.4th 577 (5th Cir. 2022)..................................... 5

Brosseau v. Haugen,

543 U.S. 194, 125 S.Ct. 596, (2004) (per curiam) .... 9

Carnaby v. City of Houston,

636 F.3d 183 (5th Cir. 2011) .................................... 5

City of Tahlequah, Oklahoma v. Bond,

142 S.Ct. 9 (2021) ................................................. 8, 9

D.C. v. Wesby,

138 S. Ct. 577 (2018) ............................................ 8, 9

Escobar v. Montee,

895 F.3d 387 (5th Cir. 2018) .................................... 3

Graham v. Connor,

490 U.S. 386 (1989) ................ 5, 6, 11, 13, 14, 16, 18

Harlow v. Fitzgerald,

457 U.S. 800, 102 S.Ct. 2727 (1982) ........................ 8

Johnson v. Scott,

576 F.3d 658 (7th Cir.2009) ................................... 17

Kisela v. Hughes,

138 S. Ct. 1148 (2018) ............................................ 10

Malley v. Briggs,

475 U.S. 335, 106 S.Ct. 1092 (1986) ........................ 8

Miller v. Gonzalez,

761 F.3d 822 (2014) .......................................... 15, 16

Morrow v. Meachum,

917 F.3d 870 (5th Cir. 2019) ................................ 4, 5

Mullenix v. Luna,

577 U.S. 7, 136 S.Ct. 305 (2015) .......................... 8, 9

Ortiz ex rel. Ortiz v. Kazimer,

811 F.3d 848 (2016) ................................................ 14

Pearson v. Callahan,

555 U.S. 223, 129 S. Ct. 808 (2009) ......................... 8

Rivas-Villegas v. Cortesluna,

142 S.Ct. 4 (2021) ................................................. 8, 9

Scott v. Harris,

550 U.S. 372 (2007) .................................................. 5

Tapp v. Banks,

1 Fed.Appx. 344 (2001) .......................................... 15

Other Authorities

Zapata County; a small community with big crime;

Laredo KGNS-TV; Story by Lisely Garza, August

22, 2022; https://www.msn.com/en-us/news/us/

zapata-county-a-small-community-with-bigcrime/ar-AA10XoES ................................................. 1

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND.

Zapata County, Texas is a small community

situated along the United States border with Mexico.

“Over 1,000 square miles make up Zapata County, 60

of those square miles are waterfront – just like any

border town, it’s divided by land or the Rio Grande.” 1

“Zapata has a population of over 14,000 people;

however, it’s a small community that has been

experiencing some big crimes recently.” Id. In an

almost everyday occurrence, law enforcement in the

area is involved in vehicle pursuits, drug busts and

illegal border crossings. Id.

On March 1, 2014, at approximately 2:00

a.m., Zapata County Chief Deputy Sheriff Raymundo

Del Bosque observed an individual, later identified as

Petitioner Juan Carlos Salazar, traveling at a speed

higher than the posted speed limit. ROA.2448-2451,

2466-2467. Chief Del Bosque unsuccessfully

attempted to stop the vehicle and requested assistance

from other law enforcement officers related to the

attempted traffic stop. Id.

Respondent Zapata County Deputy Sheriff

Juan Rene Molina responded to Chief Del Bosque’s

request for assistance. Id. at ROA.2466-2467, 24481 Zapata County; a small community with big crime; Laredo

KGNS-TV; Story by Lisely Garza, August 22, 2022;

https://www.msn.com/en-us/news/us/zapata-county-a-smallcommunity-with-big-crime/ar-AA10XoES.

2451 at 2:46. Respondent’s dashcam video captures

the entire high-speed car chase. ROA.2448-2451. The

patrol video demonstrates that the area of this

dangerous pursuit consisted of a dark residential

neighborhood. ROA 2448-2451 at 4:18-4:23 and 4:254:28. Petitioner traveled in excess of 70 miles per hour

on these dark, narrow residential streets. Pet. App.

2a. Although several private citizens were in their

vehicles with headlights activated traveling in the

neighborhood, Petitioner continued to drive at an

extremely high rate of speed through the heavily

populated area in an attempt to flee from the traffic

stop. ROA.2448-2451 at 4:53-6:06.

During the pursuit, Petitioner: (1) disregarded

numerous residential street stop signs (at a minimum

shown at ROA.2448-2451 at 5:00; 5:05; 5:16; 5:27;

5:50); (2) left the residential street, driving over the

curb, onto private property (ROA.2448-2451 at 5:315:32); and (3) encountered a private citizen’s vehicle

with headlights activated in front of a residence

(ROA.2448-2451 at 5:42). Besides these dangerous

situations, a dog cut across the path of Respondent’s

patrol vehicle which could have resulted in a deadly

crash if he had hit it. (ROA.2448-2451 at 5:43)

After attempting to flee for approximately five

minutes, Petitioner stopped his vehicle abruptly and

quickly exited the vehicle upon seeing two vehicles

pull in front of his path, blocking his way forward.

ROA.2448-2451 at 6:07. As shown in the video,

Petitioner dropped to his knees and raised his hands.

ROA.2448-2451 at 6:08. Petitioner then lowered

himself to the ground, putting his hands above his

head, and crossing his feet. ROA.2448-2451 at 6:10.

Petitioner uncrossed his feet and raised his head up

two seconds before Respondent got to him. ROA.24482451 at 6:11. An unknown individual wearing civilian

clothing is seen exiting an unknown truck

approaching Petitioner at the scene of the continued

pursuit. ROA.2593, 2448-24512 at 6:10-6:14.

After catching up to Petitioner and stopping his

patrol vehicle, Respondent immediately exited his

patrol vehicle still in pursuit of Petitioner and

approached Petitioner as demonstrated on the patrol

video. ROA 2448-2451 at 6:13-6:14. Within a splitsecond, Respondent deployed his electronic control

device, the Taser. ROA.2448-2451 at 6:14. It was

reasonable for Respondent to question the sincerity of

the surrender because he had no reason to trust that

Petitioner would not suddenly attempt to do him harm

and in fact perceived that he may further attempt to

escape as there were unknown individuals present.

Escobar v. Montee, 895 F.3d 387, 395 (5th Cir. 2018).

Respondent was also aware of Intel reports where

sometimes drug loads are followed by cartel members

and that the cartel members take care of their own to

protect the drug loads. ROA.2593.

The patrol video undisputedly demonstrates

that Petitioner was momentarily immobilized by the

Taser for only six (6) seconds and there was no further

deployment of the Taser. ROA.2448-2451 at 6:14-6:20.

Respondent was then able to approach Petitioner’s

other side by walking from the left side of Petitioner’s

body, around the bottom of his feet, to Petitioner’s

right side. ROA.2448-2451 at 6:22-6:32. Respondent

holstered the Taser and secured Petitioner with

handcuffs. ROA.2448-2451 at 6:32-6:47. Petitioner

was lifted from the ground within less than a minute

from originally exiting his vehicle. ROA.2448-2451 at

7:04-7:08.

II. PROCEDURAL HISTORY.

Four years after the alleged incident of March

1, 2014, Petitioner filed his First Amended Complaint

suing Respondent, Zapata County, a Texas Parks and

Wildlife game warden and numerous employees of the

Zapata County Sheriff’s Office. Pet. App. 24a. All of

the defendants other than Respondent were dismissed

by the district court and are no longer parties in this

litigation. As relevant to this Petition, Petitioner sued

Respondent alleging that Respondent’s “use of the

taser constituted excessive force and therefore

violated his Fourth Amendment right against

unreasonable seizures.” Id. at 3.a. Respondent moved

for summary judgment based on qualified immunity.

The district court denied the motion, and Respondent

filed an interlocutory appeal. Id. at 4a.

The court of appeals reversed. As it explained,

in order for Petitioner to overcome Respondent’s

entitlement to qualified immunity, he must show: “(A)

that [Respondent] violated his constitutional rights

and (B) that the right at issue was ‘clearly established’

at the time of the alleged misconduct.” Id. (citing

Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir.

2019).

As noted by the court of appeals, Petitioner

concedes that Respondent had the right to arrest

(seize) him after his high-speed flight but that

Respondent used excessive force. Id. The proper legal

inquiry “requires careful attention to the facts and

circumstances of each particular case, including the

severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Id. at 5a

(quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).

As the entire high-speed car chase was captured on a

dashcam video, the court of appeals applied this

Court’s precedent and

“viewed the facts in the light depicted by

the videotape.” Scott v. Harris, 550 U.S.

372, 381 (2007); see also Betts v.

Brennan, 22 F.4th 577, 582 (5th Cir.

2022) (“[W]e assign greater weight, even

at the summary judgment stage, to the

video recording taken at the scene.”

(quotation omitted)); Carnaby v. City of

Houston, 636 F.3d 183, 187 (5th Cir.

2011) (“A court of appeals need not rely

on the plaintiff ’s description of the facts

where the record discredits that

description but should instead consider

the facts in the light depicted by the

videotape.” (quotation omitted)).

Id. at 2a.

Agreeing with the district court’s analysis of the

first Graham factor, the court of appeals determined

that based on the “severity of the crime at issue” –

“leading law enforcement in a high-speed chase

through a heavily populated area is a serious crime

that puts at risk not only the lives of Plaintiff and the

officers but also those of the general public[]” – weighs

against a finding of excessive force. Id. at 6a.

When evaluating the second Graham factor, –

whether the suspect poses an immediate threat to the

safety of the officers or others – the court of appeals

determined that Petitioner’s position neither comports

with common sense nor its precedent. Id. 7a. Here, the

genuineness of a purported surrender is in question

based on the now-cornered Petitioner’s dangerous

and/or evasive behavior putting officers and

bystanders in harm’s way during his continued

attempts to evade arrest. Id. Such a ploy is “especially

true when a suspect is unrestrained, in close proximity

to the officers, and potentially in possession of a

weapon.” Id. Thus, the second Graham factor favored

dismissal for Respondent. Id. at 10a.

The court of appeals determined that the third

Graham factor – whether he is actively resisting

arrest or attempting to evade arrest by flight –

supports the reasonableness of Respondent’s use of

the taser based on Petitioner’s quick exit from his

vehicle without awaiting a command and looking

towards an open area. Id. at 11a. (“If anything, these

facts made it just as reasonable for Molina to fear that

Salazar still sought to escape as it was for Molina to

fear that Salazar was a threat to his or others’ safety.”)

Finally, the court of appeals noted that even if

Petitioner could show a violation of his Fourth

Amendment rights, Respondent was still entitled to

qualified immunity because Petitioner failed to show

a violation of clearly established law – the four cases

argued by Petitioner: (1) “involved far lessthreatening

circumstances

than

here;”

and

(2) “involved far more force than was deployed here.”

Id. at 21a.

Therefore, the court of appeals reversed the

judgment of the district court denying Respondent’s

summary judgment motion based on qualified

immunity and rendered judgment for Respondent. Id.

at 22a.

ARGUMENT

I. THE FIFTH CIRCUIT COURT OF APPEAL REACHED

THE CORRECT CONCLUSION

The Fifth Circuit’s holding follows this Court’s

well-established qualified immunity case law and does

not create a split with other decisions. The court of

appeals' fact-intensive analysis is sound, and it does

not conflict with the law in any other court of

appeals. The court of appeals simply held that

Respondent was entitled to qualified immunity

because Petitioner failed to establish a constitutional

violation. Further, Respondent was entitled to

qualified immunity as Petitioner failed to identify any

existing precedent squarely governing the specific

facts at issue that would provide Respondent notice

that the specific use of force was unlawful.

A. The Decision Below Comports with this

Court’s Precedents.

Qualified immunity protects government

officials “from liability for civil damages insofar as

their conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known.” Pearson v.

Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815

(2009)(quoting Harlow v. Fitzgerald, 457 U.S. 800,

818, 102 S.Ct. 2727 (1982)). Such a high standard

serves to protect “all but the plainly incompetent or

those who knowingly violate the law.” D.C. v. Wesby,

138 S. Ct. 577, 589 (2018); see also, City of Tahlequah,

Oklahoma v. Bond, 142 S.Ct. 9, 11 (2021)(per

curiam)(quoting Malley v. Briggs, 475 U.S. 335, 341,

106 S.Ct. 1092 (1986)).

“A right is clearly established when it is

‘sufficiently clear that every reasonable official would

have understood that what he is doing violates that

right.’” Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 7

(2021) (per curiam)(quoting Mullenix v. Luna, 577

U.S. 7, 11, 136 S.Ct. 305 (2015) (per curiam) (internal

quotation marks omitted). “In other words, existing

law must have placed the constitutionality of the

officer's conduct beyond debate.” Wesby, 138 S. Ct. at

589 (citation omitted); Rivas-Villegas, 142 S.Ct. at 78.

This Court has “repeatedly told courts not to

define clearly established law at too high a level of

generality.” City of Tahlequah, 142 S.Ct. at 11. “It is

not enough that a rule be suggested by then-existing

precedent; the ‘rule's contours must be so well defined

that it is ‘clear to a reasonable officer that his conduct

was unlawful in the situation he confronted.’” Id.

(quoting Wesby, 138 S.Ct., at 590). “[S]pecificity is

especially important in the Fourth Amendment

context, where ... it is sometimes difficult for an officer

to determine how the relevant legal doctrine, here

excessive force, will apply to the factual situation the

officer confronts.” Rivas-Villegas, 142 S.Ct. at 8

(quoting Mullenix, 577 U.S. at 12, 136 S.Ct. 305

(alterations and internal quotation marks omitted).

Therefore, courts’ inquiry “must be undertaken in

light of the specific context of the case, not as a broad

general proposition.” Id. (Brosseau v. Haugen, 543

U.S. 194, 198, 125 S.Ct. 596, (2004) (per curiam)

(internal quotation marks omitted)).

As the Fifth Circuit noted, the panel nor

Petitioner identified a single precedent finding a

Fourth Amendment violation under similar

circumstances. “By citing no factually similar

Supreme Court cases, [Petitioner] effectively concedes

that Supreme Court precedent offers him no help.”

Pet. App. 15a.

[Petitioner] infers a rule that an officer

violates clearly established law if he uses

intermediate force before negotiating

when a suspect is restrained, subdued,

and not fleeing. This rule, even if correct,

wouldn’t apply here because [Petitioner]

wasn’t restrained when he was tased.

Just as importantly, positing this kind of

general rule is insufficient to show

clearly established law. See Kisela v.

Hughes, 138 S. Ct. 1148, 1153 (2018) (per

curiam)(“[O]fficers are entitled to

qualified immunity unless existing

precedent squarely governs the specific

facts at issue.” (quotation omitted)).

Pet. App. 17a-18a.

In reviewing the Fifth Circuit tasing cases cited

by Petitioner, the panel determined that all four of the

cases “share two characteristics that make them

materially different from this case[:]” (1) “they all

involved far less-threatening circumstances than

here—in none of them was the plaintiff suspected of a

dangerous felony, and in two of them the plaintiff was

suspected of no crime at all[;]” 2 and (2) they all

“involved far more force than was deployed here—so

much force, in fact, that it killed two of the arrestees.”

Pet. App. 21a.

Petitioner failed to identify an excessive-force

case where officers used a similar level of force in

similarly threatening circumstances in order to

overcome Respondent’s entitlement to qualified

immunity.

2 “Nor had the plaintiff just attempted to flee from officers.” Pet.

App. 21a.

Petitioner incorrectly asserts that the Courts of

Appeals disagree whether past flight is sufficient for

an officer to reasonably doubt a suspect’s surrender.

The case before the Court is not based on a past flight

but rather a continued, on-going high-speed pursuit

where the now-cornered suspect (Petitioner)

immediately exited his vehicle “without a command

and looked toward an open area” – Petitioner was

unrestrained, in close proximity to the officers, and

potentially in possession of a weapon. Pet. App. 7a,

11a. Furthermore, with the presence of unknown

persons at the stop and intelligence of how cartels

operate, it was reasonable for Respondent to fear the

threat of others coming to aide Petitioner. Respondent

was forced to make “the split-second decision to deploy

his taser [as Petitioner] had just committed a

dangerous felony and was unrestrained at night in the

open.” Id. at 11a.

First, the Fifth Circuit correctly determined

that Respondent’s conduct “was comparatively modest

and not grossly disproportionate to the threat [he]

could have reasonably perceived.” Pet. App. 11a. The

Fifth Circuit’s analysis properly followed Graham in

determining whether Respondent used excessive force

as such a review depends on “the facts and

circumstances of each particular case, including the

severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers

or others, and whether he is actively resisting arrest

or attempting to evade arrest by flight.” Graham, 490

U.S. at 396, 109 S.Ct. 1865 (1989).

In regards to the severity of the crime, it is

undisputed that “leading law enforcement in a

highspeed chase through a heavily populated area is a

serious crime that puts at risk not only the lives of

Plaintiff and the officers but also those of the general

public.” Pet. App. 6a. Further, Petitioner’s argument

is misplaced by attempting to limit the Court’s review

to “the immediate circumstances of the surrender

itself” rather than viewing any perceived threat from

the perspective of Respondent during the ongoing

attempt by Petitioner to evade arrest. Pet. 17. As

noted by the Fifth Circuit, “cartel activity near the

scene and the presence of bystanders made the

situation Molina confronted more dangerous” than the

cases cited by Petitioner. Pet. App. 10a. Further,

Petitioner ignores that the high-speed pursuit was

rapidly unfolding and erroneously asserts that the

Fifth Circuit’s ruling prevents individuals “who have

previously evaded arrest” from being afforded

“protection from gratuitous force.” Pet. 17. As the Fifth

Circuit notes,

The “reasonableness” of a particular use

of force must be judged from the

perspective of a reasonable officer on the

scene, rather than with the 20/20 vision

of hindsight. . . . The calculus of

reasonableness must embody allowance

for the fact that police officers are often

forced to make split-second judgments—

in circumstances that are tense,

uncertain, and rapidly evolving—about

the amount of force that is necessary in a

particular situation.

Graham, 490 U.S. at 396–97; see also, Pet. App. 5a. A

10-second tasing before handcuffing, following

Petitioner’s abandonment of his vehicle during the

dangerous felony high speed pursuit while

unrestrained at night in the open, does not constitute

gratuitous force. Specifically, “the totality of the force

deployed—a 10-second tasing—was comparatively

modest and not grossly disproportionate to the threat

Respondent could have reasonably perceived.” Pet.

App. 11a.

Therefore, Petitioner fails to show that the

court of appeals erred in granting summary judgment

as Respondent’s conduct did not amount to an

unreasonable seizure under the Fourth Amendment.

B. Petitioner Fails to Demonstrate that there is

a Circuit Split.

Petitioner claims that the Sixth and Seventh

Circuits’ decisions in contrast to the Fifth Circuit’s

decision here create a circuit split when looking “to the

circumstances of an attempted surrender rather than

authorizing officers to doubt a surrender’s

authenticity based solely on a suspect’s prior action.”

Pet. 18. However, such an assertion does not

withstand scrutiny and does not present an issue

warranting this Court’s review. By taking such a

limited review based solely on Petitioner’s attempt to

surrender, Petitioner fails to properly follow Graham’s

direction of “careful attention to the facts and

circumstances of each particular case,” especially

taking into consideration all other circumstances

indicating that the suspect might still be a threat or

attempting to evade arrest. Graham, 490 U.S. at 396.

In Ortiz ex rel. Ortiz v. Kazimer, the Sixth

Circuit followed the Graham analysis as the Fifth

Circuit conducted in this matter. Ortiz ex rel. Ortiz v.

Kazimer, 811 F.3d 848 (2016). Ortiz involved neither

a continuation of a high-speed pursuit nor the use of a

taser. Further, the case did not have video recording.

The Sixth Circuit’s opinion states that “the gratuitous

use of force against a suspect that has surrendered is

excessive as a matter of law.” Id. at 852.The facts are

substantially different than those in this matter. In

Ortiz, the officer’s own admission was that it looked

like the suspect was surrendering and other

eyewitness accounts was that the suspect was not

making any effort to resist and was crying out in pain.

Id. Specifically,

Eyewitnesses saw a police officer chase

down a sixteen-year-old boy with Down

syndrome, take him from his mother's

arms, slam him against an SUV, then pin

his face against the car, all while

ignoring pleas from standers-by that he

was a harmless teenager. The officer

admits that he saw (and felt) the boy

surrender and heard him cry out in pain.

Yet the officer, eyewitnesses say, kept

him pinned down for fifteen minutes

while another officer stood by.

Id. at 850.

Similarly, Tapp v. Banks does not involve a

taser and was not captured by videotape. Tapp v.

Banks, 1 Fed.Appx. 344 (2001). Following a highspeed pursuit, “Tapp and Banks were … the only

witnesses to the next few minutes and to Banks's use

of force in taking Tapp into custody. They disagree

about the events that followed Tapp's exit from the

truck.” Id. at 346. Tapp testified that “he was hit

twelve to fifteen times despite following Banks's

instructions to put his face and knees on the ground.”

Id. at 350. Further, the evidence demonstrated that

Tapp suffered a fractured patella and underwent

surgery to repair his patella. Id. at 348. Without video

evidence, the Court was required to view the evidence

in the light most favorable to Tapp at the summary

judgment stage rather than the testimony presented

by Banks. Id. at 350.

Petitioner also attempts to rely on the Seventh

Circuit opinion from Miller v. Gonzalez, 761 F.3d 822

(2014). The Miller case is substantially different from

the facts and video evidence presented in this matter.

The incident involving Miller was not recorded by

video tape, did not involve a high-speed pursuit chase

or the use of a taser. While investigating a stabbing,

Gonzalez began looking for the suspect and

encountered Miller, a probationer who was driving

without a license and seen drinking alcohol while

exiting a vehicle at a gas station. Id. at 825. Miller took

off running during the questioning due to him

providing a false identity and being on probation. Id.

“If Miller is believed, Gonzalez saw him subdued at

gunpoint [by another officer], lying motionless and

spread-eagled on the ground, and then deliberately

brought down his knee on Miller's jaw with enough

force to break it. The officers concede that under

Miller's version of events (which we must credit at this

point) he demonstrated only “passive resistance,” that

is, lying with his arms outstretched and obeying every

order except for the order to move his hands behind

his back.” Id. at 829. In applying the Graham factors,

the court of appeals determined that it would not be

reasonable under Miller’s facts for Gonzalez to use

“significant” force, breaking Miller’s jaw. Id.

Finally, Petitioner relies on Alicea v. Thomas by

stating that the court of appeals rejected the officers’

argument that a suspect’s “prior flight cast doubt on

the genuineness of his surrender.” Pet. 21. In Alicea,

this matter dealt with locating a burglary suspect

after he fled to another residence, hiding in an empty

swimming pool. Alicea v. Thomas, 815 F.3d 283 (2016).

The description of the version of events are drastically

different between the officers and Alicea. Alicea

contends that one officer assisted the tracking dog into

the pool and ordered that it attack him for several

minutes. Id. at 286. Alicea states that the dog latched

onto his right arm with his teeth and refused to obey

the order to stop biting. Id. Alicea further contends

that the other officer pulled him out of the pool and

onto the ground, pressing his knee into Alicea’s back,

punched his backside and ribs and kicked and

stomped on his head. Id. at 287. “Due to Officer

Alvarez's stomping, kicking, and punching, Alicea

says he suffered lumps to the back of his head,

bruising on his ribs and back, and difficulty breathing

after the arrest. From Leo's, [the dog’s,] attack, he

suffered ripped tendons and muscles, which required

surgery and caused permanent muscle damage, pain,

numbness, and scarring.” Id. Interestingly, the

Seventh Circuit in Alicea states that:

At the same time, we have concluded

that under certain circumstances, an

officer is not required to take an

apparent surrender at face value.

Johnson v. Scott, 576 F.3d 658, 660 (7th

Cir.2009). In Johnson, we affirmed

summary judgment where a police

officer, in hot pursuit of a fleeing suspect,

released his dog to assist the chase. Not

more than one second from the suspect

throwing his hands up and saying “I give

up,” the dog bit and held him as the

officer caught up to make the arrest. The

officer then struck the suspect to subdue

him, because he interpreted the suspect's

struggle with the dog as resistance. We

found that the officer's split second

decision to use force was reasonable

to apprehend a suspect in active

flight because “the police are

entitled to err on the side of caution

when faced with an uncertain or

threatening situation.” Id. at 659.

Id. at 288-289 (emphasis added). Identical to the other

cases cited by Petitioner, Alecia did not involve the use

of a taser, was not a high-speed pursuit and was not

recorded on video.

The distinctions between the court of appeal’s

ruling here and the decisions Petitioner cites from the

Sixth and Seventh Circuits clearly demonstrate that

the courts of appeals performed the proper Graham

analysis by carefully reviewing the particular facts

and evidence of each particular case and determining

whether the totality of the circumstances justified the

seizure under the Fourth Amendment. Thus, this

Court’ longstanding case precedent under Graham

demonstrates that the Fifth, Sixth and Seventh

Circuits’ decisions properly applied the same legal

standard and are not in conflict.

CONCLUSION

Petitioner’s counsel ask the Court to rely on

four cases with vastly different alleged, unrecorded

and dissimilar facts to create a catchy new legal

doctrine. In attempting to apply such a doctrine,

Petitioner’s counsel ignores the totality of the factual

circumstances facing law enforcement in situations

like the one actually before the Court and would now

create an even more dangerous encounter for law

enforcement doing their best to protect the community

they serve. The petition for writ of certiorari should be

denied.

Respectfully submitted,

J. Eric Magee